Cole v. Varner , 31 Ala. 244 ( 1857 )

WALKEB, J.

— Upon the proof in this case we decide, that the negro woman Sydna went at first into the possession of the complainant and her husband under a loan. That proof consists of the testimony of John Yarner, the father of the complainant, from whom the possession passed to her, and of the written admission of "William G-. Yarner, her husband. John Yarner testifies, that he loaned the slave to Susan E.; and that she retained possession under the loan, during a period of time which extended up to the making of the deed of gift, in 1842.

It is true that the law presumes a gift, when a father sends home a slave with- his newly married daughter. This presumption is disputable, and may be overturned by adequate proof. It certainly would not be rebutted, by proof by the father of an unexpressed intent on his part to make a loan, and not a gift. The father’s intention could only impress upon the transaction the character of a loan, when it was intelligibly avowed. — Burnett v. Br. B’k at Mobile, 22 Ala. 642. When the witness states positively, that the transaction was a loan ; that he loaned the property to his daughter, and that she possessed it.under the loan, we must understand him to mean, not that it was a loan because he had an uncommunicated and secret intention that it should be so; but that he transferred the property by way of loan, and so declared and avowed at the time, and that it was received and held as a loan, and in subordination to his title. The fact of a loan involves other facts. It is a compound fact. It is distinguishable from a mere conclusion. It is permissible, under the decisions of this court, for a witness to prove, in general terms, that he loaned property. — Nelson v. Iverson, 24 Ala. 9 ; McKenzie v. B’k of Montgomery, 28 Ala. 606 ; Thomas v. De Graffenreid, 17 Ala. 602 ; Graham v. Tucker, 24 Ala. 606; Massey v. Walker, 10 Ala. 290; Douge v. Pierce, 13 Ala. 127 ; Parker v. Hagerty, 1 Ala. 730; Lawson v. Orear, 7 Ala. 784; Brice & Co. v. Lyde, at the present term; McGrew & Harris v. Walker, 17 Ala. 824.

2. We do not understand the cases of Norris v. Bradford, 4 Ala. 203, and Hill v. Duke, 6 Ala. 259, to assert that the mere entertainment by the lender of the idea that, by possibility, he might never resume the possession of the property loaned, would, of itself, convert the loan into a gift. The witness, John Varner, simply proves, that he had come to no definite conclusion, as to whether Mrs. Varner should keep the slaves for ever or not; and that he had no appointed time to take the slave from her. A loan for an indefinite period, and determinable at the will of the lender, may be created; and that loan can not be converted into a gift, by a disclosure from the lender that he was in an undetermined and unresolved state of mind, upon the question whether he should ever resume the possession of the property. — Gunn v. Barrow, 17 Ala. 747. If the father had a positive intention not at any subsequent time to exercise the rights of an owner in reference to the property, the transaction could not be distinguished from a gift. But that the lender revolved in his mind, and left undecided, the question whether he should not permit the property to remain in the possession of the bailee perpetually, could not absolve the bailee from the obligation resting upon him, as an incident to the bailment, to redeliver the property to the lender upon his demand; nor could it, in the absence of fraud, render the property liable to the debts of the bailee, created after the lender had resumed the control of it.

The effect which the pendency of such a loan may have as to the creditors of the bailee or her husband, being such creditors before the resumption of the control of the property by the lender, is not a question in this case. It does not appear that any of the debts, under which the slave was sold, existed before John Tamer resumed his dominion over it by making a voluntary conveyance of it to Mrs. Varner. There are no circumstances in the case, which authorize us to infer the existence of such debts before that conveyance; but the testimony conduces strongly to show, that they did not exist until afterwards. We can not intend, in the absence of proof for the defendant, the facts necessary to sustain the imputation of fraud. That those debts were created subsequently, was alleged in the bill, and not denied in the answer.

3. At the time when John Vanier assumed dominion over the property, and exercised that dominion by making an absolute conveyance of it, William G. Varner admitted in writing that the previous holding of the property had been under a loan. At that time, William G. was in possession of the property; his declaration was explanatory of that possession, and was against his interest. This declaration was available as evidence, against one who claimed by subsequent purchase under an execution against him, in favor of a plaintiff whose debt was of subsequent creation. — Barnes & Barnes v. Mobley, 21 Ala. 232. This voluntary declaration corroborates and sustains the evidence of John Varner.

4. There is no evidence of fraud in the transaction. The proof conduces to show, that the dissipation of William G. Varner was the cause of the father’s securing the property to the separate use of Mrs. Varner; but it is not shown that William G. Varner, at the time of the conveyance to Mrs. Varner, was at all indebted; nor does it appear that there was any design to defraud any subsequent creditors.

We do not think that the strong evidence of a gift, which is undoubtedly afforded by the continued possession by William G. Varner for four or five years without a resumption of possession by the lender, is sufficient, in the absence of all other evidence of fraud, to rebut the positive testimony of Jolm Varner, corroborated as it is by the admission of "William Q-. Varner.

5. A decision in this case favorable to the complainant is the necessary result of the conclusion that John Varner, in 1842, made a valid deed of gift of the property to the separate use of Mrs. Varner. After that gift, the law would refer the possession to the title. The husband and wife lived together, and, of necessity, had a community of possession. The law cast upon the husband the office of trustee of the legal title. The slave was not employed by the husband in any manner inconsistent with the trust which the law cast upon him, or with the wife’s title. The husband had no possession in opposition to the title of the wife, or distinguishable from possession by him as her husband, and under her title. Under such circumstances, the law refers the possession to the title, because the possession is where it ought to be, if it be under the title. — Joy v. Campbell, 1 Sch. & Lef. 328; De Graffenreid v. Thomas, 14 Ala. 681; Williams v. Maull, 20 Ala. 721.

6. Referring the possession to the title, Mrs. Varner, the donee, must be regarded as having been in possession from the date of the gift. The possession having, bona fide, remained with the donee, it was not necessary, under the statute of frauds, that the deed of gift should be acknowledged and proved in open court.

7. We regard the case of Gerald v. McKenzie, 27 Ala. 169, as settling the question of the complainant’s right to maintain this bill. Her husband was her trustee only because the law cast upon him the office. He was not bound by any contract to protect the trust property. The slave which is the subject of suit had been sold under executions against the husband. Under such circumstances, the wife must be allowed at once to come into chancery. The defendant claims under the trustee, and sets up a title in the trustee, adverse to the complainant. In that particular, as well as in the fact that there is no trustee bound to execute the trust and protect the trust property, this case is distinguishable from that of Colburn v. Broughton, 9 Ala. 351.

The decree of the chancellor is affirmed.